Photography and the Law: Photographers' Rights and Releases

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Released

5/5/2014

The intersection of photography and law is a complex place. What are your rights as a photographer? Where and what are you permitted—and not permitted—to photograph? What should you do when you're told to leave an area or delete photos you've already shot?

Photographer Ben Long and attorney Carolyn Wright discuss legal considerations ranging from where you can and can't take pictures to getting signed releases for people and property. Plus, learn about respecting trademarks when shooting commercial work, and your rights as a photographer when dealing with security and law-enforcement personnel.

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- Hi, I'm Ben Long.If you are like most photographers,going out and shooting people in the wild,out on the street, in public,is a really intimidating thing,it's a scary thing to approach a strangerand figure out how to get their picture.Once you got the picture though,there's this whole other scary domain that opens upand that is the issue of rights.Do you have the rights to do something with that picture?I am here with with Carolyn Wright,I never really made that distinction before,how perfect your name is for this,and we're gonna talk about rights as a photographer,what you can shoot, what you can't shoot.

So let's just start right there,where do I have the right to take a picture?- You have a right to take your photographsanywhere in the public, or in a publicly accessible area,or wherever you have permission of the property ownerto take rights, to take photographs.- Specifically that they've said you can shoot.- Yes, specifically given you authorityto take photographs on their property.- And public space, that's not a real subjective thing,that's pretty cut and dry, isn't it?- Well, that's why I say publicly accessible areas.

Because there really are no public placesexcept maybe owned by the government, federal lands,but publicly accessible places like sidewalks,streets, any place that you really have a right to be,then you can take pictures.- Okay.Now, so I have a right to take the picture there,whether I can do something with that pictureor something, we'll get to in a minute.Just for the moment, we're talking aboutthe actual shooting.I was one time on a street in a commercial areaon the sidewalk in front of a grocery store,there was a bunch of fruit out frontand I was taking pictures of it.

And the owner of the store came out and said,"You can't take pictures here."Can I take pictures there?- [Carolyn] Well, - [Ben] I'm in apublicly accessible place, shooting somethingthat belongs to him.- Well, if you were on the store's property,then the store manager or store ownerwould be able to have the rightto tell you to stop shooting.A lot of it's sort of a common sense kind of thing,are there other people, are you interferingwith the store operations?But if you were on a sidewalk,taking pictures of a storefrom in that very clearly publicly accessible area,not owned by the store,then you should be able to take photographs,it's legal for you to take photographs,as long as you're not impeding traffic,you don't have a tripod set up,you're not blocking people from moving,so it's a lot of just common sense kind of thing.

- Okay, there are places that I would seeas publicly accessible but they're actually private spaceslike going into a restaurant, going into a baror something like that.Are the same rules applying?- Exactly, I mean basically when somebody owns propertythey get to decide what happens on that property.If you walked into a restaurantand started spitting on the floor,the owner or the manager could ask you to leave.If you come into a restaurant and you're taking pictures,let's say you're taking pictures of your friends,you're out there celebrating their birthday,well the manager or the owner's not gonna stop youfrom doing that, you're having a good time.

Let's say you're sitting there at a restaurantand you're taking pictures of other customers.And that's kind of creeping out the customers.Well, the manager is not going to be happy about thatbecause you're bothering the other patrons.So again, it's a common sense kind of thing.You really need permission when you're on somebody'sproperty to take photographs.Sometimes people encourage it.Like if you're there for a party,or you have permission to come and take picturesof somebody's oak tree, something like that.But, on private property, you really have to havepermission to be there, or otherwise you're trespassingand they can arrest you, they can force you to leave.

- Okay.And that is pretty common sense,you are obviously in a private space,someone has allowed you to come in,so you're at their beck and call.You mentioned government-owned properties,so a city park, something like that,that's publicly accessible space,is that a public space I can take a picture in?- Absolutely.Again, you don't want to set up a tripodso that it's a safety issue, then yeah,you can shoot, you can go take pictures of the flowers.Now, just because it's legaldoesn't mean that somebody's not gonna try to hassle youand tell you that you can't shoot there.

And that's a different story.But as far as having the legal right to shoot,absolutely.- Okay, so what do I do if I'm in a situationthat I know is legal to shootand someone's telling me I'm not supposed to?- Photographers have been cast with this cloak that says,"We're horrible, we're terrorists,"we're gonna do something wrong."So security guards or police officerswill come up to photographers and say,"You know you can't shoot here."Because they think that you're plotting something horrible.- Casing the joint, or something.- Exactly, and another thing that happens,especially in city parks, there are children there,and parents get weirded out by photographerstaking pictures of their children.

But they absolutely have the right to do so.- So, if someone hassles me and I,like when this guy was bothering me aboutshooting the fruit outside of his store,I was pretty sure that I was in the right,it felt to me at the time,and this is a picture of some apples,I don't need it, I'll just move along,is if I can't imagine a situation where I would think,"Yeah, this is an image worth fighting for,"but if I had really needed these pictures of apples,what would I have done?- Well, first of all, you might want to explainto the store manager what you're doing,and why you're doing it,and sort of ask permission to do so,even though you don't need it.

It's just a way to get things done.If you want to stand fast for your rights,sure, you could get maybe a police officeror an attorney involved, and say,"I'm not violating any laws, let me stand here"and take pictures of the apples."Again, it's common sense as to whetheryou want to fight for your rights.For example, you're taking photographs of aan accident scene, the police officer can come alongand say, "You have to stand behind a certain area,"but the police officer cannot stop youfrom taking photographs of the accident.

You just can't interfere with their accident investigationor taking care of the injured.- So is there a situation in a publicly accessible spacewhere they could tell me not to take a picture?- For the most part, that's correct,there's not a publicly accessible area.There are some new laws that have been passedand they're gonna be challenged constitutionally,where people who are upset by perhapsfarming operations, maybe slaughterhouses,places like that, where there have been state laws passedthat prohibit a photographer from being on the street,on publicly accessible property,taking photographs onto the farm area.

And there have been laws that have been passedthat say that that's illegal.But there are constitutional challenges to that,so we're not sure exactly how that's going to be,my prediction is that it will be turned over,that as long as you're in a publicly accessible area,you should be able to shoot whatever you can see.- What about if I'm,and this is gonna sound a little creepy,so let me give a better real world example,I was walking down a street in Brooklyn one time,it was a beautiful fall afternoon,light was really nice, and I heard the sound of a violin,I looked into this beautiful brownstoneand there's a kid practicing his violin.

It's this very nice little tableau.I'm standing in a publicly accessible place,shooting into a private home,is that shaky ground?- Uh, no, and that's a great example that we can learn from.When people are in their home,and in a publicly accessible area,there still may be places where people havean expectation of privacy, and that's really the test.And by the way, this is state law,so each state may have their own laws,but in the United States, they're mostly the same.

And it's kind of a subjective questionas to whether somebody has an expectation of privacy.So let's say you're in a public restroom.Do you have an expectation of privacy in thereso that would prevent somebody from taking your photograph?Absolutely.We all sort of recognize that if I'm in a public bathroombut I'm in the stall, the door's closed,somebody can't stick a camera under that stalland take that picture of me.Likewise, when we are in our homes,we have generally an expectation of privacyonly when we have the curtains drawn, the blinds closed,then we have a clear expectation of privacy.

But if you have the, if you can visibly see the personthrough the window, they have no expectation of privacy.And this recently was an issue,there was a photographer, I believe in New York,who was taking pictures of people in the buildingsacross from her in their home.- Okay, okay.So we talked about a restaurant type of place,what about a place that is exhibitingimagery or logos or things that I know are copyrighted,I'm at Disneyland, it's a very identifiable place that,and we know Disney fights for its rights very strongly,or a famous landmark or that, how are those issues?- Absolutely, so when you're at Disneyland,that property is owned by Disneyland.

So Disneyland can dictate when you can take photographsand Disneyland, Disney, they encourage you to take photos,they want you to have family photosand show everybody you're having a great time at Disneyland.There are some times, that in Disneyland or other placeslike that, that they will tell you not to photograph.One, they might say no flash photography,it might cause a safety issue for people.Another thing is that they just may want to prevent youfrom sharing what you see.Let's say you go to a rock show or some sort of a show,they may prohibit the photography while you're there.

That's because they want to sell you copies of the photosor the video of what you're seeing,so they're trying to protect their own work.But if you were taking photographs of thingsin your photos that are protected by copyright,for example, let's say you're taking a photographof a house, and it's got paintings up on the wall.The copyright owner has the exclusive rightto determine what is reproduced.Is that a copyright violation when you take a photographof a copyrighted work?And then there might be trademarks,for example at Disneyland, there's all kinds of,there's costumes protected by copyright,there's all kinds of trademarks,the Disney trademark is everywhere.

Then you do have to make the considerationof how you use those photographs.So let's talk about copyright works first.If you take a photograph of a copyrighted work,then you do have to look at the same sort of parametersof whether you're reproducing, displayingor distributing that copyrighted work,or creating a derivative work.So, you have to look atis there fair use involved,is it de minimis in the photograph?It is a problem when you're in a placewhere there's a sculpture, that's a copyrighted work,protected by copyright.

So you have to be very careful before you reproduce it.And there was a case where's a sculpture in Washington stateand a photographer took a photographof a part of that sculpture and was licensingthat photo through a stock agency.And the photographer got sued,because the sculptor wanted to protect his copyright.So you have to be careful about that.